We The People, session vii, Rights of the Accused

The U.S. Constitution
session vii
Rights of the Accused

Rights of the Accused, or...
Cops

Cops
Courts, and

Corrections

Before the Bill of Rights
rights in the original Constitution
I.9.2-”The Privilege of a Writ of Habeas Corpus shall not be suspended,
unless…”
I.9.3-”No Bill of Attainder or ex post facto Law…”
I.10.1-”No State shall...pass any Bill of Attainder, ex post facto Law…”
III.2.3-”The Trial of all Crimes...shall be by Jury, and such Trial shall be
held in the State where the said Crimes shall have been committed
III.3-the narrow definition of treason
next, the Bill of Rights provisions

major points of this session
I. AM IV-”...unreasonable searches and seizures…”
II. AMs V & XIV-”self incrimination...due process...”
III. AM VI-trial
IV. AM VIII-”...cruel and unusual…”

AM IV
“...unreasonable
searches
& seizures…”

AM IV
“...unreasonable
searches
& seizures…”
Wall Street Journal
“Rise of the Warrior
Cop,” 7/19/13

One morning in the ‘seventies I was riding my bike to school. I was a
Social Studies teacher at Indian Hill High School. My habit was to exercise
on the way to work and shower at school. So I had my teacher clothes in a
knapsack on my back. I was wearing sweats and had a beard.
As I turned the corner from Kenwood Road to Shawnee Run Road I was
ordered to stop by the loudspeaker on a Madeira police car. “Stop the
bike!” The officer got out of his car and began to interrogate me. Needless
to say, everything I had learned about rights of the accused came to
consciousness pretty quickly.
Well, all was soon resolved. He had stopped me because I fitted the
description of a “Peeping Tom” who had been tormenting a nearby nursing
home. I guess I had an honest face
“Stop the Bike!”

One morning in the ‘seventies I was riding my bike to school. I was a
Social Studies teacher at Indian Hill High School. My habit was to exercise
on the way to work and shower at school. So I had my teacher clothes in a
knapsack on my back. I was wearing sweats and had a beard.
As I turned the corner from Kenwood Road to Shawnee Run Road I was
ordered to stop by the loudspeaker on a Madeira police car. “Stop the
bike!” The officer got out of his car and began to interrogate me. Needless
to say, everything I had learned about rights of the accused came to
consciousness pretty quickly.
Well, all was soon resolved. He had stopped me because I fitted the
description of a “Peeping Tom” who had been tormenting a nearby nursing
home. I guess I had an honest face because I satisfied the officer quickly.
But I have viewed rights of the accused very differently ever since.
“Stop the Bike!”

Amendment IV
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no warrants shall issue, but upon
probable cause, supported by oath or afﬁrmation, and
particularly describing the place to be searched, and the persons
or things to be seized.

“For more than a century [after 1791], [the Fourth Amendment]
was a sleeping giant….It was just sixty years ago [in 1975], in Weeks
v. United States, that the modern development--indeed the first
step towards effectiveness--of [it] began. The Weeks case
involved the seizure of personal papers and effects, including
letters from a man’s home without any sort of warrant. There were
in fact two seizures. The first was by local police officers. They
turned the fruits of their efforts over to the federal
authorities….”
Erwin N. Griswold, Search and Seizure; A Dilemma of the Supreme Court, 1975. pp. 2-3

Weeks v. United States, 1914
when Weeks was convicted on the basis of the evidence found in
these two searches his counsel appealed successfully to the U.S.
Supreme Court
the White Court (1910-21) overturned the federal conviction thus
creating the exclusionary rule

Weeks v. United States, 1914
when Weeks was convicted on the basis of the evidence found in
these two searches his counsel appealed successfully to the U.S.
Supreme Court
the White Court (1910-21) overturned the federal conviction thus
creating the exclusionary rule
“if letters..can thus be seized...and used as evidence against a
citizen...the protection of the Fourth Amendment...is of no value, and,
so far as those thus placed are concerned, might as well be stricken
from the Constitution.”--Mr. Justice Day
however, the opinion also stated that the Fourth Amendment only
applied to federal searches! Selective incorporation would wait
another 47 years
Wm Rufus Day
1849-1923

Mapp v. Ohio, 1961
facts- On May 03, 1957, police officers in a Cleveland, Ohio suburb received information that a
suspect in a bombing case, as well as some illegal betting equipment, might be found in the home
of Dollree Mapp. Three officers went to the home and asked for permission to enter, but Mapp
refused to admit them without a search warrant. Two officers left, and one remained. Three hours
later, the two returned with several other officers. Brandishing a piece of paper, they broke in the
door. Mapp asked to see the “warrant” and took it from an officer, putting it in her dress. The
officers struggled with Mapp and took the piece of paper away from her. They handcuffed her for
being “belligerent.” They did not find the bombing suspect nor the gambling equipment. They did,
however, find pornographic material in a trunk in her basement. She was arrested, prosecuted, and
found guilty for possession of pornographic material
question-Were the confiscated materials protected by the First Amendment? (May evidence
obtained through a search in violation of the Fourth Amendment be admitted in a state criminal
proceeding?)
oyez.org

Mapp v. Ohio, 1961
facts- On May 03, 1957, police officers in a Cleveland, Ohio suburb received information that a
suspect in a bombing case, as well as some illegal betting equipment, might be found in the home
of Dollree Mapp. Three officers went to the home and asked for permission to enter, but Mapp
refused to admit them without a search warrant. Two officers left, and one remained. Three hours
later, the two returned with several other officers. Brandishing a piece of paper, they broke in the
door. Mapp asked to see the “warrant” and took it from an officer, putting it in her dress. The
officers struggled with Mapp and took the piece of paper away from her. They handcuffed her for
being “belligerent.” They did not find the bombing suspect nor the gambling equipment. They did,
however, find pornographic material in a trunk in her basement. She was arrested, prosecuted, and
found guilty for possession of pornographic material
question-Were the confiscated materials protected by the First Amendment? (May evidence
obtained through a search in violation of the Fourth Amendment be admitted in a state criminal
proceeding?)
decision- The Court brushed aside the First Amendment issue and declared that "all
evidence obtained by searches and seizures in violation of the Constitution is, by [the Fourth
Amendment], inadmissible in a state court." Mapp had been convicted on the basis of illegally
obtained evidence
significance-This was an historic -- and controversial -- decision. It placed the requirement
of excluding illegally obtained evidence from court at all levels of the government. The decision
launched the Court on a troubled course of determining how and when to apply the exclusionary
rule.
oyez.org

“The result has been--as in so many other areas in recent
years--a great torrent of litigation. This is evidenced by the
entries of decisions under the Fourth Amendment in the United
States Code Annotated. In the latest bound volume, these occupy
683 double-columned pages, classified under 1,222 different
categories…. Over seven-thousand decisions are abstracted,
virtually all of which have been decided within the past fifteen
years [1960-75].
“The Mapp decision required a complete change in the outlook
and practices of state and local police. Prior to the Mapp case--
as the Weeks decision itself illustrates--search warrants were
virtually unknown in city police departments.”
Griswold, pp. 7-8

Terry v. Ohio, 1967
facts- Terry and two other men were observed by a plain clothes policeman in what
the officer believed to be "casing a job, a stick-up." The officer stopped and frisked the
three men, and found weapons on two of them. Terry was convicted of carrying a
concealed weapon and sentenced to three years in jail
question- Was the search and seizure of Terry and the other men in violation of
the Fourth Amendment?
oyez.org

Terry v. Ohio, 1967
facts- Terry and two other men were observed by a plain clothes policeman in what
the officer believed to be "casing a job, a stick-up." The officer stopped and frisked the
three men, and found weapons on two of them. Terry was convicted of carrying a
concealed weapon and sentenced to three years in jail
question- Was the search and seizure of Terry and the other men in violation of
the Fourth Amendment?
decision- the Court held that the search undertaken by the officer was reasonable
under the Fourth Amendment and that the weapons seized could be introduced into
evidence against Terry. Attempting to focus narrowly on the facts of this particular
case, the Court found that the officer acted on more than a "hunch" and that "a
reasonably prudent man would have been warranted in believing [Terry] was armed
and thus presented a threat to the officer's safety while he was investigating his
suspicious behavior." The Court found that the searches undertaken were limited in
scope and designed to protect the officer's safety incident to the investigation
signiﬁcance- Terry created a rule, also known as the Stop-and-Frisk Rule, which
would govern police work unchallenged until this summer
oyez.org

Note-the Amendment prohibits “unreasonable,” not
“unwarranted” searches and seizures
A search pursuant to a warrant is, naturally, considered
reasonable. It may, however, be violative of other constitutionally
protected rights of the accused, e.g., if it is conducted in a brutal
manner.
But, as in the case of Terry, a search of a suspect’s person, without
a warrant may be held to be reasonable and thus lawful.
So the Court had to consider all manner of searches: car searches,
students’locker searches, &c.
A key factor was the Court’s opinion as to whether the petitioners
had a “reasonable expectation of privacy” where the search took
place.
jbp

Bloomberg vs. “Stop & Frisk”
“The debate over "stop-and-frisk" police tactics is front and center in New York City
and elsewhere in the nation. This policy goes to our very definition of community,
leading to a fundamental question: Are these tactics intended to build or bust trust
in a community?
“If stop-and-frisk is to be used, then police departments must build these
approaches based on a simple but profound principle: the police are there to serve
the community, even help build community. This will require a shift in orientation
and practice for some departments and their officers. But such steps are vital to the
health of communities.
“A compelling video about a high school senior from Brooklyn's East Flatbush
neighborhood helps make this point. He tells of his experiences with New York City
police who have now stopped and frisked him at least seven times. The first time, he
was 13 years old. He had walked one block from his home to his friend's house so
they could walk to school together.
“The police saw him standing in front of his friend's house and proceeded to look
through his book bag, rough him up, search his pockets and force him to spread his
legs….”
Richard C. Harwood, “Stop-and-Frisk: Build Trust, not Bust It.” 8/23/13, on Huffington Post.com

United States v. Robinson, 1973
facts- A police officer pulled over and arrested Robinson for operating an
automobile without a valid permit. The officer then frisked Robinson and
discovered a crumpled cigarette package containing fourteen vials of heroin
in his pocket
question- Did the officer’s search violate the Fourth Amendment?

United States v. Robinson, 1973
facts- A police officer pulled over and arresting Robinson for operating an
automobile without a valid permit. The officer then frisked Robinson and
discovered a crumpled cigarette package containing fourteen vials of heroin
in his pocket
question- Did the officer’s search violate the Fourth Amendment?
decision- The Court upheld the search. Distinguishing between searches
done to discover concealed weapons and those conducted coextensive with
an arrest, Justice Rehnquist argued since the officer did not conduct the
search in an abusive or extreme manner, and because he acted consistent
with the authority vested in a police officer when making an arrest, his
actions were legitimate
signiﬁcance- Robinson created a rule that a full body search, incident to a
lawful arrest does not require a warrant
oyez.org

“Fruit of the Poisonous Tree”
is a legal metaphor...used to describe evidence that is obtained illegally. The logic of
the terminology is that if the source of the evidence or evidence itself (the "tree") is
tainted, then anything gained from it (the "fruit") is tainted as well….
Such evidence is not generally admissible in court….
The doctrine is an extension of the exclusionary rule, which, subject to some
exceptions, prevents evidence obtained in violation of the Fourth Amendment from
being admitted in a criminal trial. Like the exclusionary rule, the fruit of the
poisonous tree doctrine is intended to deter police from using illegal means to
obtain evidence.
The doctrine is subject to four main exceptions. The tainted evidence is admissible
if:
1. it was discovered in part as a result of an independent, untainted source; or
2. it would inevitably have been discovered despite the tainted source; or
3. the chain of causation between the illegal action and the tainted evidence is
too attenuated; or
4. the search warrant not based on probable cause was executed by government
agents in good faith (called the good-faith exception)….
.
Wikipedia

Search & Seizure of Speech--Katz v. United States, 1967
Facts-Charles Katz used a public pay phone booth to transmit illegal gambling wagers from
Los Angeles to Miami and Boston. Unbeknownst to Katz, the FBI was recording his
conversations via an electronic eavesdropping device attached to the exterior of the phone
booth. Katz was convicted based on these recordings. He challenged his conviction, arguing
that the recordings were obtained in violation of his Fourth Amendment rights. The Court of
Appeals sided with the FBI because there was no physical intrusion into the phone booth itself.
The Supreme Court granted certiorari, indicating it may be interested in reviewing the case
Questions-
Does the right to privacy extend to telephone booths and other public places?
is a physical intrusion necessary to constitute a search?
is the case constitutional?

Search & Seizure of Speech--Katz v. United States, 1967
Facts-Charles Katz used a public pay phone booth to transmit illegal gambling wagers from
Los Angeles to Miami and Boston. Unbeknownst to Katz, the FBI was recording his
conversations via an electronic eavesdropping device attached to the exterior of the phone
booth. Katz was convicted based on these recordings. He challenged his conviction, arguing
that the recordings were obtained in violation of his Fourth Amendment rights. The Court of
Appeals sided with the FBI because there was no physical intrusion into the phone booth itself.
The Supreme Court granted certiorari, indicating it may be interested in reviewing the case
Questions-
Does the right to privacy extend to telephone booths and other public places?
is a physical intrusion necessary to constitute a search?
is the case constitutional?
Decision-in Olmstead v. U.S. (1928), the ruling wiretap case precedent, Chief Justice Taft had
written: “there was no searching, there was no seizure here, there was no entry...” The Warren
Court overruled this precedent (7-1) with Justice Stewart writing the decision:
"The Government's activities in electronically listening to and recording the petitioner's words violated
the privacy upon which he justiﬁably relied while using the telephone booth and thus constituted a
'search and seizure' within the meaning of the Fourth Amendment."
Regardless of the location, a conversation is protected from unreasonable search and seizure under
the Fourth Amendment if it is made with a “reasonable expectation of privacy”.

"We sleep safely in our beds because rough men stand ready in the night to visit
violence on those who would harm us."--misattributed to George Orwell
Actual source: Quote Investigator found the earliest
known appearance in a 1993 Washington Times
essay by Richard Grenier: "As George Orwell pointed
out, people sleep peacefully in their beds at night
only because rough men stand ready to do violence
on their behalf." The absence of quotation marks
indicates Grenier was using his own words to convey
his interpretation of Orwell's opinion, as seen in
citations below:
In his 1945 "Notes on Nationalism", Orwell wrote that it
was "grossly obvious" that "Those who ʻabjureʼ violence
can do so only because others are committing violence on
their behalf."
In an essay on Rudyard Kipling, Orwell cited Kipling's
phrase "making mock of uniforms that guard you while you
sleep" (Kipling, Tommy), and further noted that Kipling's
"grasp of function, of who protects whom, is very sound.
He sees clearly that men can be highly civilized only while
other men, inevitably less civilized, are there to guard and
feed them." (1942)
Wall Street Journal
Cop,” 7/19/13

In the ‘60s the civil rights movement produced a gulf between those
demanding change and the armed forces of order. As a Government
teacher I took advantage of a program created by the LEAA* to ride
with the Cincinnati Police Department.
My Experience with Police Ride-Alongs
______________
*The Law Enforcement Assistance Administration (LEAA) was a U.S. federal agency within the U.S. Dept. of
Justice. It administered federal funding to state and local law enforcement agencies, and funded educational programs,
research, state planning agencies, and local crime initiatives.
The LEAA was established by the Omnibus Crime Control and Safe Streets Act of 1968 and was abolished in 1982.

In the ‘60s the civil rights movement produced a gulf between those
demanding change and the armed forces of order. As a Government
teacher I took advantage of a program created by the LEAA* to ride
with the Cincinnati Police Department.
As I experienced on both trips, most of the four-hour shift was dull
as dishwater. In just this brief exposure I was able to appreciate what a
difficult job these officers have. My one and only scary experience
reminded me of how my flight instructor at Pensacola described naval
aviation: hours of boredom punctuated by moments of stark terror.
Bottom line--not a job for the faint of heart.
I wish every citizen could have this experience.
jbp
My Experience with Police Ride-Alongs

Wall Street Journal
Cop,” 7/19/13

Florida v. Jardines, 2013
facts- On November 3, 2006, the Miami-Dade Police Department received an
unverified ""crime stoppers"" tip that the home of Joelis Jardines was being used to
grow marijuana. On December 6, 2006, two detectives, along with a trained drug
detection dog, approached the residence. The dog handler accompanied the dog to
the front door of the home. The dog signaled that it detected the scent of narcotics.
The detective also personally smelled marijuana.
The detective prepared an affidavit and applied for a search warrant, which was issued. A
search confirmed that marijuana was being grown inside the home. Jardines was arrested
and charged with trafficking cannabis. Jardines moved to suppress the evidence seized at
his home on the theory that the drug dog's sniff was an impermissible search under the
Fourth Amendment and that all subsequent evidence was fruit of the poisonous tree.
The trial court conducted an evidentiary hearing and subsequently ruled to suppress the
evidence. The state appealed the suppression ruling and the state appellate court
reversed, concluding that no illegal search had occurred since the officer had the right to
go up to the defendant's front door and that a warrant was not necessary for the drug
dog’s sniff. The Florida Supreme Court reversed the appellate court's decision and
concluded that the dog's sniff was a substantial government intrusion into the sanctity of
the home and constituted a search within the meaning of the Fourth Amendment. The
state of Florida appealed the Florida Supreme Court's decision.
oyez.org

question- Is a dog sniff at the front door of a suspected grow house by a
trained narcotics detection dog a Fourth Amendment search requiring
probable cause?
decision- Yes

question- Is a dog sniff at the front door of a suspected grow house by a
trained narcotics detection dog a Fourth Amendment search requiring
probable cause?
decision- Yes
Justice Antonin Scalia delivered a 5-4 opinion affirming the Florida Supreme
Court’s decision. The Court held that the front porch of a home is part of the
home itself for Fourth Amendment purposes. Typically, ordinary citizens are
invited to enter onto the porch, either explicitly or implicitly, to communicate
with the house’s occupants. Police officers, however, cannot go beyond the
scope of that invitation. Entering a person’s porch for the purposes of
conducting a search requires a broader license than the one commonly
given to the general public. Without such a license, the police officers were
conducting an unlawful search in violation of the Fourth Amendment
oyez.org
Ideology isn’t always decisive as to how the Justices vote--jbp

AMs V & XIV
“...self incrimination
...due process”

Amendment V
No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a
grand jury, except in cases arising in the land or naval forces, or
in the militia, when in actual service in time of war or public
danger; nor shall any person be subject for the same offense to
be twice put in jeopardy of life or limb; nor shall be compelled
in any criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process of law;
nor shall private property be taken for public use, without just
compensation.

“The Fifth Amendment is almost synonymous with the right
against compulsory self-incrimination. One who “pleads the
Fifth” is not insisting on a grand jury indictment, freedom from
double jeopardy, or just compensation for property taken by the
government---all safeguarded by the same amendment. He is
saying that he will not reply to an official query because his
truthful answer might expose him to criminal jeopardy. He seems
to be saying that he has something to hide, making the Fifth
Amendment appear to be a protection of the guilty. Without
doubt the right against self-incrimination is the most
misunderstood, unrespected, and controversial of all rights.”
Leonard W. Levy, Origins of the Fifth Amendment; The Right Against Self-Incrimination. 2nd ed. 1986

some unpopular claimants of the “Fifth”
1950‘s-the “fifth amendment communists” of the HUAC era

1951-53-the mobsters, here, Frank Costello, grilled by the
Kefauver Committee on organized crime

1951-53-the mobsters, here, Frank Costello, grilled by the
Kefauver Committee on organized crime
May 22, 2013-IRS Undersecretary Lois Lerner when asked about
IRS targeting of conservative 501( c)-tax exempt organizations

“...in Rogers v. Richmond [1961] Justice Frankfurter spoke for six
other Justices in writing: “Our decisions under that [Fourteenth]
Amendment have made clear that convictions following the
admission into evidence of confessions which are involuntary, i.e.,
the product of coercion, either physical or psychological, cannot
stand. This is so not because such confessions are unlikely to be true
but because the methods used to extract them offend an underlying
principle in the enforcement of our criminal law: that ours is an
accusatorial and not an inquisitorial system—a system in which the
State must establish guilt by evidence independently and freely
secured and may not by coercion prove its charges against an
accused out of his own mouth.”
CRS/LII Annotated Constitution, p. 1329 as cited at www.law.cornell .edu/anncon/

This rather mysterious phrase appears throughout the discussions in
both these two sources, Levy and the Annotated Constitution. It is at the
heart of why forced confessions are rejected in our modern justice
system.
We are all familiar with the ecclesiastical courts which used the
inquisitorial system, most famously in Spain. The suspect was brought
before the inquisitors, put under oath, and compelled to answer
questions--not infrequently accompanied by torture.
England, during the Wars of Religion, late sixteenth to mid-
seventeenth centuries, also persecuted religious non-conformists. We’ve
already reviewed the case of John Lilburne. The victors in the English
Civil War rejected inquisitorial courts like the infamous Court of the
Star Chamber.
jbp
“...an accusatorial and not an inquisitorial system…” ?

The Star Chamber
document
showing
King
Henry VII
sitting in
the Star
Chamber--
so-called
for the
stars
painted on
its ceiling

The Star Chamber
The Star Chamber (Latin: Camera stellata) was an English court of
law that sat at the royal Palace of Westminster from the late 15th
century until 1641. It was made up of Privy Councillors, as well as
common-law judges and supplemented the activities of the common-
law and equity courts in both civil and criminal matters. The court was
set up to ensure the fair enforcement of laws against prominent
people, those so powerful that ordinary courts would never convict
them of their crimes. Court sessions were held in secret, with no
indictments, and no witnesses. Evidence was presented in writing.
Over time it evolved into a political weapon, a symbol of the misuse
and abuse of power by the English monarchy and courts.
Wikipedia

A “Star Chamber” Proceeding
In modern usage, legal or administrative bodies with strict, arbitrary
rulings and secretive proceedings are sometimes called, metaphorically
or poetically, star chambers. This is a pejorative term and intended to cast
doubt on the legitimacy of the proceedings. The inherent lack of
objectivity of politically motivated charges has led to substantial reforms in
English law in most jurisdictions since that time.
Ibid.
In addition to the inquisitorial forcing of self-incrimination, the Star
Chamber violated all sorts of procedural due process requirements which
the Sixth Amendment spells out in detail. The trial was neither speedy nor
public. There was no right to confront hostile witnesses nor procure friendly
ones.
jbp

Miranda v. Arizona (1967)
1960’s-a movement began providing poor defendants legal aid, the work of
various state bar associations
1964-LBJ’s campaign promised a Great Society which would include a federal
Legal Services Corporation
1963-Ernesto Miranda was arrested for and confessed to the rape of an 18-year-
old girl. The circumstances of this confession formed the legal issue of this
landmark case . It touched both the 5th Amendment self-incrimination clause and
the 6th Amendment right to an attorney.

Miranda v. Arizona (1967)
1960’s-a movement began providing poor defendants legal aid, the work of
various state bar associations
1964-LBJ’s campaign promised a Great Society which would include a federal
Legal Services Corporation
1963-Ernesto Miranda was arrested for and confessed to the rape of an 18-year-
old girl. The circumstances of this confession formed the legal issue of this
landmark case . It touched both the 5th Amendment self-incrimination clause and
the 6th Amendment right to an attorney.
1967- Chief Justice Warren wrote the (5-4) decision:
The person in custody must, prior to interrogation, be clearly informed that he has the right to
remain silent, and that anything he says will be used against him in court; he must be clearly
informed that he has the right to consult with a lawyer and to have the lawyer with him during
interrogation, and that, if he is indigent, a lawyer will be appointed to represent him.
If the individual indicates in any manner, at any time prior to or during questioning, that he
wishes to remain silent, the interrogation must cease ... If the individual states that he wants
an attorney, the interrogation must cease until an attorney is present. At that time, the
individual must have an opportunity to confer with the attorney and to have him present
during any subsequent questioning.

Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to
a speedy and public trial, by an impartial jury of the state and
district wherein the crime shall have been committed, which
district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his favor, and
to have the assistance of counsel for his defense.

Justice delayed is justice denied-
The right to a speedy trial may be derived from a provision of Magna Carta and it was a
right so interpreted by Coke. Much the same language was incorporated.into the Virginia
Declaration of Rights of 1776 and from there into the Sixth Amendment. --Annotated
Constitution, p. 1401

Between common law traditions, the abhorrence of Star Chamber
proceedings, and administrative need to clear the dockets, there has been
little need for the Supreme Court to rule on this right.
The right to a writ of habeas corpus (I,9,2) ensures that our prisons do
not lock people up, throw away the key and forget about them as in other
times and places. [Much as we might like to in some cases].
The case proved otherwise in the case of the right to counsel.
jbp

Gideon v. Wainwright (1963)
1932-in Powell v. AL, the famous Scottsboro Boys case, the court had ruled that
States had to provide counsel to indigent defendants in “special circumstances,”
thus beginning the process of incorporation. This was a capital case

The angry white crowd waiting to
see “justice” done to the “boys”
accused of raping two white girls

1942-in Betts v. Brady, a non-capital case, the USSC held that “unless there were
special circumstances like illiteracy, stupidity or being in an especially complicated
trial, there was no need for a court-appointed attorney.”
1961-Between midnight and 8:00 a.m. on June 3...a burglary occurred at the Bay
Harbor Pool Room in Panama City, Florida. Someone broke a door, smashed a
cigarette machine and a record player, and stole money from a cash register.
Later that day, a witness reported that he had seen Clarence Earl Gideon in the
poolroom at around 5:30 that morning, leaving with a wine bottle and money in
his pockets. Based on this accusation alone, the police arrested Gideon and
charged him with breaking and entering with intent to commit petty larceny.
Gideon appeared in court alone as he was too poor to afford counsel-Wikipedia
the stage was set for one of the most amazing stories in judicial history

Clarence Earl Gideon
His father died when he was three. Gideon quit school after eighth
grade and ran away from home, living as a homeless drifter. By the
time he was sixteen, Gideon had begun compiling a petty crime
profile.
Gideon spent a year in a reformatory for burglary before finding
work at a shoe factory. At age 18, he was arrested in Missouri and
charged with robbery, burglary, and larceny. Gideon was sentenced
to 10 years but released after three, in 1932. Gideon spent most of
the next three decades in poverty. He served some more prison
terms at Leavenworth, Kansas for stealing government property; in
Missouri for stealing, larceny and escape; and in Texas for theft.
Between his prison terms Gideon was married four times. The first
marriage ended quickly, but the fourth ... (in October, 1955) lasted.
They settled in Orange, Texas, in the mid-1950s, and Gideon found
irregular work as a tugboat laborer and bartender until he was
bedridden by tuberculosis for 3 years.
In addition to three children that Ruth already had, Gideon and Ruth
had three children, born in 1956, 1957 and 1959: … the third after
the family had moved to Panama City, Florida. The six children
were later removed by welfare authorities. Gideon started working
as an electrician in Florida, but began gambling for money because
of his low wages. He did not serve any more time in jail until 1961.
Wikipedia

1961-Between midnight and 8:00 a.m. on June 3, 1961, a burglary occurred...
The COURT: Mr. Gideon, I am sorry, but I cannot appoint Counsel to represent you in this
case. Under the laws of the State of Florida, the only time the Court can appoint Counsel to
represent a Defendant is when that person is charged with a capital offense. I am sorry, but I
will have to deny your request to appoint Counsel to defend you in this case.
GIDEON: The United States Supreme Court says I am entitled to be represented by Counsel.
The Florida court declined to appoint counsel for Gideon. As a result, he was
forced to act as his own counsel and conduct his own defense in court,
emphasizing his innocence in the case. At the conclusion of the trial the jury
returned a guilty verdict. The court sentenced Gideon to serve ﬁve years in the
state prison
From his prison cell at Florida State Prison, making use of the prison library and
writing in pencil on prison stationery, Gideon appealed to the United States
Supreme Court in a suit against the Secretary to the Florida Department of
Corrections...Louie L. Wainwright.... Gideon argued in his appeal that he had
been denied counsel and, therefore, his Sixth Amendment rights, as applied to
the states by the Fourteenth Amendment, had been violated

1961-Between midnight and 8:00 a.m. on June 3, 1961, a burglary occurred...
The COURT: Mr. Gideon, I am sorry, but I cannot appoint Counsel to represent you in this
case. Under the laws of the State of Florida, the only time the Court can appoint Counsel to
represent a Defendant is when that person is charged with a capital offense. I am sorry, but I
will have to deny your request to appoint Counsel to defend you in this case.
GIDEON: The United States Supreme Court says I am entitled to be represented by Counsel.
The Florida court declined to appoint counsel for Gideon. As a result, he was
forced to act as his own counsel and conduct his own defense in court,
emphasizing his innocence in the case. At the conclusion of the trial the jury
returned a guilty verdict. The court sentenced Gideon to serve ﬁve years in the
state prison
From his prison cell at Florida State Prison, making use of the prison library and
writing in pencil on prison stationery, Gideon appealed to the United States
Supreme Court in a suit against the Secretary to the Florida Department of
Corrections...Louie L. Wainwright.... Gideon argued in his appeal that he had
been denied counsel and, therefore, his Sixth Amendment rights, as applied to
the states by the Fourteenth Amendment, had been violated
The Supreme Court assigned Gideon a prominent Washington, D.C. attorney,
future Supreme Court justice Abe Fortas

The Supreme Court assigned Gideon a prominent Washington, D.C. attorney, future
Supreme Court justice Abe Fortas
1963-The Supreme Court's decision was...delivered by Justice Hugo Black. Three
concurring opinions were written by Justices Clark, Douglas and Harlan…..Gideon v.
Wainwright overruled Betts v. Brady, instead holding that the assistance of counsel, if
desired by a defendant who could not afford to hire counsel, was a fundamental right
under the United States Constitution, binding on the states, and essential for a fair trial
and due process of law
The Supreme Court remanded the case to the Supreme Court of Florida for "further
action not inconsistent with this decision."
Gideon v. Wainwright was one of a series of Supreme Court decisions that conﬁrmed
the right of defendants in criminal proceedings, upon request, to have counsel
appointed both during trial and on appeal. In the subsequent cases of Massiah v.
United States, 377 U.S. 201 (1964) and Miranda v. Arizona 384 U.S. 436 (1966), the
Supreme Court further extended the rule to apply even during police interrogation
About 2000 individuals that had been convicted in Florida alone were freed as a result
of the Gideon decision. The decision did not result directly in Gideon being freed;
instead, he got a new trial with the appointment of defense counsel at the
government's expense

AM VIII
“...cruel & unusual…”

Amendment VIII
Excessive bail shall not be required, nor excessive ﬁnes
imposed, nor cruel and unusual punishments inﬂicted.

First, some more Law 101
felony vs misdemeanor-a felonious crime, typically one involving
violence, regarded as more serious than a misdemeanor, for which the
statutory punishment is incarceration for a year or longer (or capital
punishment!) Misdemeanor crimes receive lesser sentences or even
alternative punishment such as community service or probation
prison vs jail-in U.S. law, jails are places of detention for all prisoners
awaiting trial. If they are convicted of a felony, they go to prison; of a
misdemeanor, they are remanded to jail to serve the rest of their
sentence (total time served, less than a year)
jbp

Why We Punish-traditional views
retribution- ‫ׁן‬ֵ‫ש‬ְּ‫ב‬ ‫ׁן‬ֵ‫ש‬ ‫ִן‬‫י‬ַ‫ע‬ְּ‫ב‬ ‫ִן‬‫י‬ַ‫ע‬(ayin tachat
ayin-”An eye for an eye”)

deterrence-”I’m going to make an
example of you. You won’t be doing that
again!”or “Others won’t do it”

rehabilitation-19th century
penitentiaries, some time to contemplate
your sins and make a firm resolution to
mend your ways

mend your ways
incapacitation-take you out of
circulation: capital punishment
(permanently)

mend your ways
incapacitation-take you out of
circulation: capital punishment
(permanently), or incarceration
(temporarily)

Prison Reform
Prisons have only been used as the primary punishment for criminal acts in the last
couple of centuries. Far more common earlier were various types of corporal
punishment, public humiliation, penal bondage, and banishment for more severe
offenses, as well as capital punishment.
Wikipedia
___________
* data supplied by China, highly suspect-jbp

Eastern State Penitentiary, Phila, PA
1829-1971

Cincinnati’s Contribution to Prison Reform

1869-after the Civil War POW Horror stories, both North and South,
reformers took a hard look at prison conditions. Cincinnati built its world-
famous Work House in Camp Washington
1870-Cincinnati hosted a “National Congress” which wrote a reform agenda
1874-Kenney’s Illustrated Cincinnati lists 4,175 “adult criminals convicted of
minor offenses”-daily average, 436 at an average cost of 40¢. About 1/4th
were females. Annual expenses $75, 322.78. Services of prisoners let to
contractors yielded $16,287.68
my Work House memories
1980-listed on the National Register
1990-demolished & replaced by River City Correctional Center which treats
felons for chemical dependency

The Hamilton County River City Correctional Center (RCCC) is located at 3220
Colerain Avenue, the former site of the Community Correctional Institution or
"Workhouse" in Camp Washington. RCCC is one of eighteen Community Based
Correctional Facilities (CBCF's) presently operating in the State of Ohio. The
CBCF is a local alternative to prison with the primary purpose of rehabilitation for
non-violent, felony offenders. The River City Correctional Center can accomodate
220 residents, consisting of 165 male and 55 females. The average length of stay is five months,
depending upon the treatment needs of the individual. The maximum length of stay is six months.
The Hamilton County River City Correctional Center is governed by a Facility Governing Board
(FGB). Two thirds of the board is appointed by the Hamilton County Court of Common Pleas and
one-third is appointed by the Hamilton County Board of Commissioners. The FGB makes certain
the facility meets the highest possible standards in safety, security and effectiveness.
RCCC is staffed by over 100 full and part time employees who provide coverage 24-hours a day,
seven days a week to provide security and treatment to residents. Residents may receive a variety
of services during their stay at River City, including chemical dependency treatment, remedial
education and employment assistance. The goal of treatment is to assist residents in recognizing
and overcoming their substance abuse dependency, criminal thinking and life skill deficiencies.
http://www.hamilton-co.org/hc/rccc_default.asp

Gary Gilmore fulfills his death wish...

1972-death row inmates nationwide received good news in Furman v. GA. The
Court held (5-4) the death penalty unconstitutional because it was
“unusual.” Potter Stewart, in the controlling opinion:
"These death sentences are cruel and unusual in the same way that being struck by lightning is
cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many
just as reprehensible as these, the petitioners are among a capriciously selected random handful
upon whom the sentence of death has in fact been imposed. My concurring Brothers have
demonstrated that, if any basis can be discerned for the selection of these few to be sentenced to
death, it is the constitutionally impermissible basis of race.”-Wikipedia
All 4 Nixon appointees ( Burger, Blackmun, Powell, Rehnquist) dissented
the States were compelled to re-examine their statutes & procedures
1975-in Gregg v. GA, the Court further refined the Furman rule that if the
procedure for sentencing was rational and not racially discriminatory,
executions could go forward
1977-at his own demand, Gilmore became the first person executed in the U.S.
in ten years. He got his 15 minutes of fame

giving a goodbye wave to the firing squad

The humanizing of War! You might as well talk of the humanizing of Hell...As if war could be
civilized!--British First Sea Lord, Jackie Fisher
Admiral of the Fleet
John Arbuthnot "Jacky" Fisher,
1st Baron Fisher
GCB, OM, GCVO
(1841 – 1920)

waterboarding is the current cause cèlébre regarding “cruel and unusual”
its recorded use dates back to the Spanish inquisition
its use by American soldiers in the Philippine insurrection (1901-04) helped
rouse a domestic opposition

waterboarding is the current cause cèlébre regarding “cruel and unusual”
its recorded use dates back to the Spanish inquisition
its use by American soldiers in the Philippine insurrection (1901-04) helped
rouse a domestic opposition
the Wickersham report (1931) said that it was part of the unacceptable
interrogation techniques of American police, known as the “third degree”
Courts of that period accepted confessions obtained by torture
2007-when its use by the CIA in the war on terror came to light, a flurry of
legalizing and renditions tried to make the issue go away
2008-one of the current president’s appeals and subsequent public positions
was his opposition to its use

One element which unifies all these different specific rights of the
criminally accused is clear. There is a tension between two alternative
approaches which some have called the culture wars. There is the newer
sensitivity which defends those who stand accused. “Better that ten guilty
go free, than that one innocent should suffer.”

This has produced a conservative reaction. What about protecting the
victims of crime!

This has produced a conservative reaction. What about protecting the
victims of crime!
Our court system, culminating in the U.S. Supreme Court, strives to
strike a just balance. And the public mood, reflected in Presidential and
Senatorial elections, pushes the composition one way, then the other.
“And so it goes…”
Our final session will conclude this constitutional history. We will
examine how change at so many levels has tested “the supreme law of the
land” (VI,2). And, that’s another story...

We The People, session vii, Rights of the Accused

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We The People, session vii, Rights of the Accused